The COVID-19 pandemic continues to wreak havoc on American society. Public health experts agree that the best way to end it is with the development and implementation of a safe and effective vaccine program, and government, private industry and not for profit organizations have already committed billions of dollars towards this end. This Essay will examine three possible approaches that government and businesses can take to increase the likelihood that enough Americans are immunized against the SARS-CoV-2 coronavirus to achieve herd immunity.
This essay proposes that Wisconsin’s formulations of duty and causation are unique and fundamentally incompatible with the Restatement (Second) of Torts. Part I offers a theory of Wisconsin negligence. It tracks the historical roots of Wisconsin’s negligence framework and distinguishes Wisconsin’s approach from jurisdictions that follow the Restatement by examining two famous cases, The Wagon Mound and the “exploding lamp” case.1
Part II considers two recent Wisconsin Supreme Court decisions and argues that in each case, the Court applied sections of the Restatement that were incompatible with Wisconsin law. These cases are microcosms of a larger debate among the justices questioning whether duty should be handled differently in cases of negligent omissions as opposed to negligent acts. This essay proposes that nearly a century of settled law resolves this debate, and that Wisconsin’s unique negligence analysis is strong enough to answer any difficult questions that come before it. When the Wisconsin Supreme Court resolves complicated cases by adopting unnecessary sections of the Restatement, it places the doctrinal integrity of Wisconsin’s negligence framework at risk. Judges would be wise to avoid the Restatement (Second) of Torts altogether.
Thomas A. Baker III, Marc Edelman, & John T. Holden
The COVID-19 health crisis and resulting “stay at home” orders have led to newfound challenges for commercial sports leagues concerning how to safely and ethically conduct games during such uncertain times. For professional sports leagues, including Major League Baseball, the National Basketball Association, the National Football League, and the National Hockey League, many of the decisions about how to return to sport have entailed collectively-bargained negotiations between league owners and players’ unions. However, in collegiate sports, where the players are not unionized, these decisions are made unilaterally by colleges on either the individual school, conference, or national level—all without any meaningful player input. This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.
Nizan Geslevich Packin
The COVID-19 economic crisis has brought to light something very broken in the American banking system—banks prioritize their own profits over the interests of those they serve and interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.
The law of wills is steeped in tradition, including what is required for the valid execution of a document purporting to contain a testator’s intention for the distribution of her or his estate upon her or his death. This is reflected in the need to comply with certain formalities for a will to be valid. Although these formal requirements differ in extent and form throughout the world, their purposes, in common law jurisdictions such as Australia and the United States of America, are fourfold: they serve evidentiary, cautionary or ritual, protective, and channeling functions.
When a Wisconsin court deems a state statute unconstitutional, it enjoins the government from enforcing the statute. Even if the court makes that determination in the form of a temporary injunction, before full consideration of the merits or issuance of a final judgment, the government has an immediate right to appellate review. In such cases, the government frequently asks that the injunction be stayed—that is, prevented from taking effect—pending resolution of the appeal.
In March 2016, the University of South Florida (USF) received striking news. A current professor, Samuel Bradley, was under investigation for allegations of sexual misconduct2 with former students at the university where he had previously worked. Bradley had resigned during the investigation and USF failed to discover any of this information during the hiring process. When USF became aware of the allegations, which had been disclosed by news media, the university placed Bradley on administrative review and eventually terminated him.
University of Wisconsin Law Professor Miriam Seifter believes “state agencies are, on the whole, less transparent than their federal counterparts, less closely followed by watchdog groups, and less tracked by the shrinking state-level media.” This adds up to her conclusion that “[s]tate bureaucracy does not operate in a fishbowl,” which combined with its tremendous and growing power makes it “a largely unguarded giant.”
I believe there are serious counterexamples to her claims. In fact, my experience after six years working in senior roles in a governor’s office convinces me that state-level administrations, though not perfect, vindicate the framers’ vision that the states “do a lion’s share of governance affecting people’s day-to-day lives.”
The Sisk-Leiter rankings of scholarly impact use a Westlaw search to determine a scholar’s citation count. However, the search does not review the citations to determine if they actually are citations to a scholar’s work rather than other hits such as blog posts (whether authored by the scholar or by another on the scholar’s eponymous blog), citations to works by others in books that the scholar edited, citations to the work of other scholars who only mention the scholar under study (such as a citation in a work to the work of a scholar that had reviewed the book of the scholar under study), media mentions, or author acknowledgements for comments not eliminated by the search term, such as those that appear in footnotes or the body of the article. I use citations to Brian Leiter’s work to show that the Sisk-Leiter Westlaw citation count is overstated by about 40% in Leiter’s case, with 398 of 557 attributed cites being to citations to Leiter’s academic work. While Leiter’s case may be more upwardly biased than others because of his popular industry blog, the fact is that media mentions, citations to the works of others in edited volumes, and citations to works that discuss the scholar under study but are not cites directly to that work have an unknown bias that cannot be assumed away easily. Moreover, by ignoring cites in judicial opinions to scholarly work, the method as applied by Sisk undervalues the impact of scholars in some fields of more practical importance and, therefore, likely the scholarly impact and ranking of faculties with strong scholars in antitrust, bankruptcy, corporate and securities law. A combination of Westlaw (with judicial citations) and Google Scholar would provide more reliable results.
In his article, Scott Cummings proposes that there existed an “old canon” concerning how to be a lawyer for progressive social justice causes, which has been replaced by a different “new canon” that envisions the role of movement lawyers quite differently. According to Cummings, old canon lawyering places courts “at the heart of the canonical stories.” New canon lawyering, on the other hand, involves using legal institutions other than courts and focuses on the intersection between law and politics. Cummings gives examples of the old and new ways of lawyering and also draws conclusions about what causes the momentum of social movements to slow. One of Cummings’ central arguments is that the critique of what he calls old canon lawyering is in many respects misplaced.
I wholeheartedly agree with Cummings’ thesis that much of the critique of the “old” way of engaging in social movement lawyering is misplaced; here I offer some additional or alternative reasons why. To sum up my argument, I do not believe there is much of a difference between old versus new perspectives on the range of appropriate strategies for social movement lawyering. Historically as today, social movement lawyers understood that sometimes courts are useful but sometimes they are not. Looking in the long view, so-called “old canon” lawyers have understood this just as “new canon” lawyers do. Instead, the most significant difference between the lawyering styles Cummings labels “old” versus “new” canon involves lawyers’ heightened sensitivity to the ethical problems that arise in social movement lawyering. I briefly develop these arguments below.